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Judge blocks EPA’s "waters" rule from taking effect Friday

BISMARCK—States opposed to a new clean water rule expanding federal jurisdiction over state waters claimed a temporary victory Thursday when a federal judge blocked the rule from taking effect Friday.

Judge Ralph Erickson granted the preliminary injunction requested by North Dakota and a dozen other states that sued the U.S. Environmental Protection Agency and Army Corps of Engineers in June over their “Waters of the United States,” or WOTUS, rule.

Erickson wrote in his order that the states are likely to succeed on their claim in part because “it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue.”

“On balance, the harms favor the states,” Erickson wrote. “The risk of irreparable harm to the states is both imminent and likely. More importantly, delaying the rule will cause the agencies no appreciable harm. Delaying implementation to allow a full and final resolution on the merits is in the best interests of the public.”

The states claim the rule infringes on their sovereignty and will be costly and confusing to landowners, farmers, ranchers and local governments who will have to obtain federal permits or undergo federal review for uses affecting tributaries to major rivers and wetlands, ponds, lakes and ditches connected to those tributaries.

During a hearing on the injunction motion last week, North Dakota officials warned that the rule could bring oil projects to a standstill, cut into oil production and state tax revenues, make water projects more costly and cause confusion and uncertainty for farmers.

Attorneys for the EPA and Corps say the Clean Water Act is already unclear and that the revisions will clear up confusion stemming from Supreme Court decisions in 2001 and 2006 on which streams and wetlands fall under federal authority.

The case is one of 10 lawsuits challenging the WOTUS rule that have been filed in federal courts across the country, according to court files. The 10 cases collectively involve 71 plaintiffs, including a total of 31 states, a number of industry groups and a few private entities.

North Dakota is joined in the lawsuit by Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and two New Mexico state agencies.